Immigration policy in the United States has always hinged on two key questions: who is allowed to enter the country and, once here, who is then accorded the rights of citizenship?

Today, immigration falls under Title 8 of the US Code. Its volatility over the years is notable in that chapters 1-5 and 7-10 of Title 8 have been repealed or transferred over the years, while only Chapters 6 and 11-14 still govern.

From 1870 to 2003, immigration policy was administered by the Immigration and Naturalization Service (INS), which at different times in its history was part of the Departments of Treasury, Commerce and Justice. Most of its functions were subsumed into the Department of Homeland Security in 2003, where it is now known as the U.S. Citizenship and Immigration Services (USCIS).

Questions about citizenship and immigration were pressing even at the dawn of the Republic; the United States Constitution (1787), Article One, Section Eight states “Congress shall have the right . . . to establish a uniform rule of naturalization.” The Naturalization Law of 1790 responded to Article One, Section Eight by allowing naturalization of “free white persons” “of good moral character” who had been in the country for two years and in their claimed state of residence for a year. While it was racially restrictive, it was considered radical in its day for its inclusion of people of all religious faiths.

The residency time limits for citizens were expanded by the Naturalization Laws of 1795 and 1798 (the latter, one of John Adams’ infamous Alien and Sedition Acts, was later over-turned); today the time limits are generally five years, (three years if married to a U.S. Citizen).

In the Supreme Court case Dred Scott vs. Sandford (1857), Chief Justice Roger Taney wrote a decision ruling, among other things, that slaves and their descendents could never become citizens of the United States. The Fourteenth Amendment to the Constitution (1868) over-turned the Dred Scott decision, making former slaves born in the United States citizens, and guaranteeing equal protection under the law for all persons.

Since the Civil War and the Fourteenth Amendment, immigration policy has tended to be cyclical; during periods of economic prosperity requiring an expansion of the labor force, policies tend to reduce barriers to immigration; during periods of economic malaise when labor forces contract, xenophobic reactions tend to fester, and pressures for more restrictive policies increase.

Take for example the passage of the Chinese Exclusion Act of 1882, which suspended immigration from China, after large numbers of Chinese laborers and their families has come to the United States to work in the California gold fields and on the Transcontinental Railroad. This act was not repealed until 1943.

European immigration rose in the years that followed, which, again, resulted in restrictive legislation once the economic situation led to rising unemployment among native-born citizens and the resultant xenophobia that followed it; The Emergency Quota Act of 1921 and Immigration Act of 1924 established quotas for numbers of immigrants from selected nations, typically Asian, African, and Southern/Eastern European ones.

The quotas were reaffirmed by McCarran-Walter Act of 1952, but were finally abolished by the Immigration and Nationality Act of 1965, which was both an attempt to right past wrongs (paired with the Civil Rights Act of 1964 and the Voting Rights of 1965), and an attempt to curry favor in the Third World and among the “Non-Aligned Nations” during the peak years of the Cold War; the provisions of this act are still largely in effect, though numbers of visas issued, etc., have changed.

Key immigration legislation since then has included:

• Immigration Reform and Control Act (1986): Made it a crime to knowingly hire illegal aliens, while providing amnesty to those already here.
• The Illegal Immigration Reform and Immigrant Responsibility Act (1996): Significantly tightened processes for prosecuting and deporting illegal aliens.

Today, the primary issues associated with immigration have to do with the differences between immigrants who entered and remain in the country legally, and those who either entered legally, but remained past the expiration of their visas, or those who entered the country illegally and still remain.  The Center for Immigration Studies notes that immigrant population in the U.S. (legal and illegal) reached an all-time high of 37.9 million in 2007. Immigrants tend to be less educated, are younger, have larger families, and earn less than native-born citizens also per Center for Immigration Studies research.

Pew Hispanic Center estimates there are about 12 million illegal aliens (nearly 1/3 of all immigrants) currently in the United States, a number supported by independent GAO analysis. Of these, 57% are from Mexico, 24% are from Central America, and the remaining 19% are from the rest of the world.

Note that illegal immigration from Mexico is not a new issue; in 1954, the INS embarked upon “Operation Wetback,” designed to deport 4 million illegal Mexicans from the country. Ultimately, they deported ~130,000, while another 1.2 million fled the U.S. rather than be deported.

Today, there are two primary fears driving the illegal immigration debate today: (1) post 9/11 fears of terrorists illegally entering the country to cause harm to its citizens, and (2) economic fears about native-born workers losing jobs to illegal immigrants, who also consume an inordinate amount of social service resources.

Interestingly, given the press this issue has received in recent years, the Center for Immigration Studies conducted a survey in 2008 which revealed that most voters in the Presidential elections generally didn’t know what their chosen candidates’ positions on immigration were—and often disagreed with them when they were informed.

The bottom-line fact of the matter today is that it would be physically and economically impossible to deport 12 million illegal aliens; even finding and identifying them would be an immense task. We can close the gates now, but we can’t remove those who have already arrived.

The legal side of the immigration issue also has its share of policy problems today, first and foremost involving the H1B Visa, which is issued to highly skilled immigrants. There are only 85,000 issued per year. Last year, 163,000 applications were received. The USCIS uses a lottery system to decide who gets them, so they are all consumed immediately each year. The most skilled workers often simply lose out to luckier applicants who may not be the best candidates.

Ultimately, the key issue for America’s policymakers is to identify how to incorporate illegal and legal aliens into the fabric of American life in a way that doesn’t cause undue hardship either to the government, the taxpayers, the social service and educational infrastructure or the aliens themselves. We can wall off the border with Mexico to our hearts’ content (at absurd expense), but there’s no way a modern “Operation Wetback” is going to reverse the cross-border flow of the past quarter-century.

Recommended Further Reading:

• Urrea, Luis Alberto. The Devil’s Highway, Little Brown and Company, 2004.
• Higham, John. Strangers in the Land: Patterns of American Nativism, Rutgers University Press, 2002 (originally published in 1963).
• Swain, Carol (editor). Debating Immigration, Cambridge University Press, 2007.
• Tichenor, Daniel J. Dividing Lines: The Politics of Immigration Control in America, Princeton University Press, 2002.
• Ford, William F. “Immigrationomics,” Economic Education Bulletin, Vol. XLVII, No. 10, American Institute for Economic Research, October 2007.
• Hing, Bill Ong. Defining American Through Immigration Policy (Mapping Racisms), Temple University Press, 2004.
• Center for Immigration Studies Website, http://www.cis.org.